Cheerleader of the Week: McKenna

Landis's accusations may not be the only trouble for Armstrong

In a series of recent e-mails to cycling officials and sponsors, Floyd Landis accused 17 other riders -- most notably seven-time Tour de France winner Lance Armstrong -- of doping or complicity in doping. All of the accused parties either declined to address or denied outright Landis's allegations.

Stripped of his 2006 Tour de France title after testing positive for synthetic testosterone, Landis had lied for years about his own use of performance-enhancing drugs. For most of his career Armstrong has had to fend off allegations that he was not a clean champion. Nothing really stuck. This time could be different. The Texan's latest counterattack took place amid reports that Landis is cooperating with a federal probe led by Jeff Novitzky, the chief investigator in the Bay Area Laboratory Cooperative (BALCO) case and now a special agent for the criminal division of the U.S. Food and Drug Administration.

Two independent sources close to the investigation told SI that Armstrong is part of the focus of Novitzky's probe. If Landis's allegations are true, they are some of the most damning in the history of cycling. And the information contained in various e-mails of Landis's that have surfaced may not be all that he has told Novitzky. SI.com legal expert Michael McCann discusses the potential fallout.

If Landis is telling the truth, could Armstrong be charged with a crime?

Yes, provided that Landis's claims are supported by sufficiently corroborating evidence. Keep in mind, truthfulness of an accuser or witness is not the only consideration for law enforcement authorities when deciding to pursue charges -- supporting evidence is just as important. Prosecutors know that it takes a jury to believe beyond a reasonable doubt in a defendant's guilt. So if Landis is telling the truth but lacks records, schedules and emails that can authenticate his claims, or if supporting witnesses do not step forward, then it is unlikely that authorities would pursue charges.

Also, authorities would not pursue charges if the relevant statutes of limitations have expired. Under federal law, the statute of limitations for charges related to the illegal possession and distribution of steroids, human growth hormone and related performance-enhancers is five years. Federal charges for conspiracy and racketeering also carry a five-year statute of limitations. Given that Landis rode with Armstrong between 2002 and 2004, charges for whatever wrongdoing Armstrong may have committed could therefore be barred by time. That said, the statute of limitations for a charge can be tolled (extended) under certain conditions.

Some of Landis's allegations might also involve, or at least relate to, more recent activity. Assuming that the necessary evidence emerges and that a statute of limitations does not bar a claim, then Landis's assertions would implicate criminal law. Namely, he claims that Armstrong distributed and promoted a banned performance-enhancer, the blood booster erythropoietin (EPO). EPO -- a hormone produced by the kidney -- is not itself illegal under U.S. law. But it is a prescription drug and Armstrong lacks the legal capacity to distribute it.

Also, by claiming that he worked with Armstrong's personal trainer, Dr. Michele Ferrari, on other banned performance-enhancers, Landis implies that Armstrong may have been part of a conspiracy to distribute and possess illegal steroids. Conspiracy, which makes it a crime to collaborate on criminal activity, has been used by the Justice Department in other steroid cases, including in the 2004 indictment against Victor Conte, Greg Anderson and other persons connected to the Bay Area Lab Cooperative (BALCO).

Depending on the kinds of factual allegations ultimately levied against Armstrong, he could also be exposed to federal racketeering charges under The Racketeer Influenced and Corrupt Organizations Act (RICO). RICO is federal statute that applies to many forms of illegal activity, including drug cases. If Armstrong and others engaged in a continuous and controlled pattern of organizing riders to use or distribute steroids and other illegal substances, RICO would become a more plausible charge. In addition, if Armstrong pressured riders into using drugs without their consent, those riders could in theory use RICO to recover monetary damages. RICO provides for civil recovery and in some cases treble damages.

Are we going to see Armstrong or any of the riders and managers testify under oath?

Possibly. If Armstrong or other riders or managers are charged with a crime, they would have the choice to testify under oath; if they are only witnesses in a criminal trial, they could be called to testify. Should a civil case eventually occur, they would be obligated to testify whether they are defendants or witnesses.

The willingness of witnesses to testify would be impacted by the nature of any charges. For instance, if Armstrong and his subordinates are all charged, they may be more willing to testify against their boss in order to protect themselves.

While under oath, each would be required to refrain from knowingly lying, as doing so would expose him or her to perjury charges. Each could avoid questions by invoking the Fifth Amendment, which would protect him or her from disclosing information that he or she reasonably believes could be used in, or give rise to, criminal prosecution. The Fifth Amendment cannot be used to avoid questions that lack the threat of criminal prosecution.

Even if a trial never occurs and no one testifies under oath, the legal process could still compel each team member to tell the truth. It is a crime to knowingly lie to law enforcement authorities, a fact which would be relevant should any government investigations commence.

Why would law enforcement authorities listen to someone of questionable character like Landis?

For one, Landis would be breaking the law by knowingly lying to federal government officials.

Second, sometimes persons with checkered pasts and suspicious motivations are telling the truth and sometimes they are the only persons willing to tell the truth. Just recall when Jose Canseco was widely ridiculed for claims in his book, Juiced Wild Times, Rampant 'Roids, Smash Hits, and How Baseball Got Big, that Mark McGwire, Jason Giambi and other players used steroids. While Canseco's colorful past and financial motivations for book sales gave legitimate reason to question the accusations, he appears to have been telling the truth. Perhaps if he had been taken more seriously earlier in time, the steroid scandal could have been addressed more effectively.

In addition, it is the job of law enforcement and other investigatory officials, including special agent Jeff Novitzky, to assess the credibility of Landis and how well his claims would withstand courtroom scrutiny. Clearly, if Landis is the central accuser of Armstrong, Armstrong could attack Landis on multiple grounds. But should the government conclude that Armstrong broke the law, it will try to find additional sources of evidence and testimony that support Landis's claims but lack his vulnerabilities.

What is the significance of Armstrong's ex-wife, Kristin, reportedly cooperating with law enforcement?

It could suggest that law enforcement authorities have threatened her with criminal charges if she does not provide information. In that case, it would be in her self-interest to cooperate, particularly given that the "spousal immunity", a legal device which ensures that communications between spouses remain confidential and that spouses not be obligated to testify against one another, ended when she and Armstrong divorced. If she furnishes evidence that corroborates the claims of her ex-husband's accuser, Armstrong would have more reason to worry about exposure to criminal charges. Unlike with Landis, who arguably has financial motives to distort the truth, it could prove difficult for Armstrong and his attorneys to persuade a jury that Kristin Armstrong shares the same incentives to lie or exaggerate.

What is the legal significance of USPS sponsoring Armstrong's team?

In all likelihood, the sponsorship by USPS, an independent agency within the Executive Branch of the federal government, will not impact the legal duties of Armstrong or the team. Sponsorship of a racing team probably does not convert the team into an entity that acts on behalf of the government, nor is it likely to turn decision-makers of the team into government agents. Therefore, even though Armstrong was a part-owner and principal decision-maker for Tailwind Sports, which managed the USPS team and received the sponsorship money, his main legal concerns probably center on accusations of illegal distribution.

It is worth noting, however, the possibility that Armstrong's treatment of USPS sponsorship money could bring legal scrutiny, particularly under the federal statute for the misuse of public funds and embezzlement, 18 U.S.C. §§ 648. The statute prohibits custodians of public funds from misusing those funds and carries up to a 10-year prison sentence. The fact that USPS does not draw from taxpayer funds may not help Armstrong, since the statute does not distinguish taxpayer public funds from non-taxpayer public funds.

Still, whether Armstrong's individual control of the funds would be sufficient to trigger scrutiny, and whether promotional public funds fall within the purview of the statute are complicating factors. At this stage, therefore, it seems unlikely that the USPS sponsorship will impact the legal analysis.

As a separate matter, the decision of USPS to drop its sponsorship of Armstrong's team is likely authorized by the morals clause language in their sponsorship contract.

Does Armstrong have any potential legal claims against Landis?

Yes. If Landis is lying when publicly claiming that he obtained EPO from Armstrong and that Armstrong engaged in other potentially criminal acts, then Armstrong would have a strong claim of slander against him. Slander refers to the tort of orally defaming another person's character or reputation. Normally a plaintiff must show that he or she suffered economic harm from the slanderous statement. Particularly egregious statements, such as falsely claiming that another person committed a crime, can be considered slander per se, which provides recovery for emotional harm even in the absence of economic harm.

Given that Landis's accusation threatens Armstrong's image as a national hero and genuine competitor, and also portrays Armstrong as a distributor of banned substances or even as a drug dealer, Armstrong would likely be able to show damages. A public figure like Armstrong would have the added burden of proving actual malice (knowledge or recklessness) on the part of Landis in making the defaming accusation, but that probably would not be difficult to show in this context.

But if Landis is telling the truth, then a slander claim by Armstrong would fail, as truth is usually an absolute defense to slander.

Armstrong has said that he will not pursue legal action against Landis. Does that suggest that Landis is telling the truth and that Armstrong is lying?

No. Landis may be telling the truth, but Armstrong's unwillingness to file a slander lawsuit does not prove that. Armstrong, in fact, identifies a number of credible reasons why it may not be worth his time filing a lawsuit. As he notes, such a lawsuit could prove time consuming and also a source of stress for him and his family.

On the other hand, a cynic may reason that Armstrong would not file a lawsuit because he would not want to expose his statements of innocence to the scrutiny of a court, nor would he want to place himself under oath, particularly while under cross-examination.

Michael McCann is a law professor at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He also teaches a sports law reading group at Yale Law School.